Arapahoe County District Court No. 11CR1851 Honorable F.
Stephen Collins, Judge
J. Weiser, Attorney General, Kevin E. McReynolds, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
A. Ring, Colorado State Public Defender, Jeanne Segil, Deputy
State Public Defender, Denver, Colorado, for
1 Defendant, Charles Marcus Hamm, appeals the district
court's denial of his request for an evidentiary hearing
on his petition for postconviction relief (the Petition).
Hamm contends that his trial counsel was ineffective by not
advising him that the penalty reductions enacted through the
Uniform Controlled Substances Act of 2013 (the Act) apply
retroactively and, therefore, require a reduction in his
sentence. He also contends that the district court erred in
denying him an evidentiary hearing on his challenge to the
voluntariness of his stipulation (the Stipulation) to a
thirty-year prison sentence.
2 We hold that, under section 18-1-410(1)(f)(II), C.R.S.
2018, and Crim. P. 35(c)(1), Hamm's failure to file a
direct appeal precludes him from seeking postconviction
review of his sentence based on a "significant change in
the law." Further, we hold that the trial court did not
err in denying Hamm an evidentiary hearing because the Act
does not apply retroactively and thus cannot reduce
Hamm's Conviction and Postconviction Motions
3 Hamm was charged with one count of distribution of a
controlled substance (3.4 grams of cocaine) in September 2011
and five habitual criminal counts based on his prior felony
convictions. A jury convicted him on the distribution count.
4 The district court continued the trial on the habitual
counts while the defense and the People negotiated an
agreement on Hamm's sentence. In exchange for dismissal
of the habitual counts, Hamm stipulated to a sentence of
thirty years in the custody of the Department of Corrections
and five years of parole to avoid a mandatory sentence of
5 Hamm filed a pro se motion in the district court to extend
the deadline for an appeal. The court denied the motion
because he had filed it in the wrong court. Hamm did not
directly appeal his conviction or his sentence.
6 Hamm filed the Petition more than one year later. For
purposes of this appeal, he argued in the Petition that his
trial counsel had been ineffective by failing to advise him
that the General Assembly had recently passed the Act and
that the penalty reductions reflected in the Act applied
retroactively. Hamm argued that, if the Act had been applied
to him, he would have faced a maximum sentence of sixteen
years. He also argued that he should be permitted to withdraw
the Stipulation because he had entered into it without
knowledge of the Act and, further, had agreed to the
thirty-year sentence equivocally. He asked the district court
to conduct an evidentiary hearing on the Petition.
7 The district court denied the Petition after determining
that the Act did not apply retroactively. The court held that
Hamm's ineffective assistance claim failed because his
trial counsel would have been misstating the law if he had
advised Hamm that the Act applied retroactively. The court
further found that the Stipulation was enforceable because
Hamm had entered into it freely, knowingly, and voluntarily.
In light of its findings, the district court declined to
conduct an evidentiary hearing on the Petition.
Section 18-1-410(1)(f)(II) and Crim. P. 35(c)(1) Bar
Hamm's Ineffective Assistance Claim
8 We resolve Hamm's ineffective assistance of counsel
claim on grounds not raised in the briefs because, as a
matter of law, that claim is not properly before us. See
Moody v. People, 159 P.3d 611, 615 (Colo. 2007)
("[A]ppellate courts have the discretion to affirm
decisions . . . on any basis for which there is a record
sufficient to permit conclusions of law, even though they may
be on grounds other than those relied upon by the trial
Governing Statute and Rule
9 Section 18-1-410(1)(f)(II) and Crim. P. 35(c)(1) bar
Hamm's ineffective assistance claim because Hamm did not
file a direct appeal of his conviction and sentence. Thus,
the district court should not have considered the claim.
10 Section 18-1-410 sets forth the circumstances under which
a person convicted of a crime may seek postconviction review
of his sentence. Subsection (1) of the statute allows a
defendant who did not file an appeal to move for
postconviction review: "Notwithstanding the fact that no
review of a conviction of crime was sought by appeal within
the time prescribed therefor, or that a judgment of
conviction was affirmed upon appeal, every person convicted
of a crime is entitled as a matter of right to make
applications for postconviction review." §
11 Subsection (1)(f) of the statute applies to postconviction
motions premised on a "significant change in the
law." § 18-1-410(1)(f). Subsection (1)(f)(I)
authorizes postconviction motions on the grounds that
"there has been significant change in the law, applied
to the applicant's conviction or sentence, allowing in
the interests of justice retroactive application of the
changed legal standard." § 18-1-410(1)(f)(I).
12 The next subsection of the statute imposes conditions on
postconviction motions based on a "significant change in
the law." A person convicted of a crime is barred from
arguing a "significant change in the law" in a
postconviction motion if he "has not sought appeal of a
conviction within the time prescribed therefor or if a
judgment of conviction has been affirmed upon appeal."
13 Crim. P. 35(c)(1) contains similar language:
If, prior to filing for relief pursuant to this paragraph
(1), a person has sought appeal of a conviction within
the time prescribed therefor and if judgment on that
conviction has not then been affirmed upon appeal, that
person may file an application for postconviction review upon
the ground that there has been a significant change in the
law, applied to the applicant's conviction or sentence,
allowing in the interests of justice retroactive application
of the changed legal standard.
Crim. P. 35(c)(1) (emphasis added).
14 Therefore, a person may not seek postconviction relief
based on a "significant change in the law" unless
(a) he has filed a timely appeal and (b) an appellate court
has not affirmed his judgment of conviction.
Did Not File an Appeal and, Therefore, May Not Seek
Postconviction Relief Based on a "Significant Change in
15 Hamm was convicted on the distribution count on January
31, 2013, and stipulated to the thirty-year sentence on
September 30, 2013. Hamm filed his motion to extend the
deadline for an appeal in the district court on October 21,
2013. The district court denied the motion, however, because
Hamm had filed it in the wrong court. See C.A.R.
4(b)(1) ("[T]he appellate court may . . . extend the
time for filing a notice of appeal . . . ."). The record
contains no indication that Hamm ever filed in this court a
motion to extend the time to appeal. In any event, Hamm never
filed a direct appeal of his conviction or sentence, which
became final when he missed the deadline to file a notice of
16 Hamm filed the Petition two years later, on October 11,
2015. Because he did not file an appeal, he did not satisfy
the conditions precedent for seeking postconviction relief
based on a "significant change in the law,"
regardless of whether the Act applies retroactively. §
18-1-410(1)(f)(II); Crim. P. 35(c)(1); see People v.
Stellabotte, 2018 CO 66, ¶ 33, 421 P.3d 174, 181
("Subsection 18-1-410(1)(f)(I) provides for retroactive
application of significant change in the law to a
defendant's conviction or sentence but, under subsection
(II), during only direct appeal, before the conviction is
final. Thus, it applies only to criminal prosecutions and
during only a narrow procedural timeframe.");
Glazier v. People, 193 Colo. 268, 269, 565 P.2d 935,
936 (1977) ("As we have repeatedly held, a defendant is
entitled to the benefits of amendatory legislation when
relief is sought before finality has attached to the judgment
of conviction."); People v. Thomas, 185 Colo.
395, 398, 525 P.2d 1136, 1138 (1974) (holding that where the
defendant sought postconviction relief during the pendency of
his appeal, "amendatory legislation mitigating the
penalties for crimes should be applied to any case which has
not received final judgment").
17 For this reason, we affirm the district court's denial
of Hamm's request for a hearing on his ineffective
assistance of counsel claim.
The District Court Did Not Err in Denying Hamm's Request
for an Evidentiary Hearing on ...